Alberta’s Complex Minor Injury Cap Law Explained

Alberta’s “minor injury caps” are rooted in a complex set of laws that were implemented under the pretense of reducing insurance costs.  This objective has largely failed, and the law is perceived to have profited insurance companies at the expense of injured victims’ rights.  Recently, these rights have been further eroded through amendments to the minor injury laws.  The recent changes warrant a comprehensive review of the current minor injury laws in Alberta.

Background

The“minor injury cap” on compensation for pain and suffering was introduced in 2004, and expanded in 2018.

Prior to 2004, compensation for pain and suffering for injuries arising from motor vehicle accidents was assessed based on court precedent. In other words, judges would decide what was fair in any particular case, and those decisions would be used to determine what was fair in subsequent cases, and so on.

In 2004, the Alberta government changed the law to limit the compensation available for pain and suffering for certain “minor injuries” arising from motor vehicle accidents. Now, if an injury is deemed “minor”, then the compensation for pain and suffering is capped.

The cap is currently $5,080 as of 2018, and it increases every year with inflation.

What is a “Minor Injury”

Unfortunately, the “minor injury” laws were poorly drafted, leaving significant confusion and ambiguity as to what qualifies as “minor injury”.

The law currently provides that a minor injury is:

• a strain, sprain, whiplash associated disorder (with no neurological signs), certain temporomandibular disorders (TMJ), and related physical and psychological symptoms;
• that does not cause serious impairment such as long-term problems with work, leisure or other regular activities;
• that is not expected to improve substantially.

The courts have interpreted the minor injury law somewhat narrowly, meaning they have limited the application of the minor injury definition, particularly where the injury is long lasting. What constitutes “long lasting” varies from case to case, but the courts tend to classify injuries that seriously impact a claimant for longer than six months as chronic.

How To Determine Whether An Injury Is Minor?

There are generally three ways that an injury may be classified as “minor”.

The first is if the claimant fails to follow certain diagnostic and treatment protocols that are dictated by the government. If a claimant fails to follow these protocols, then the injury may be deemed minor unless the injury results in substantial impairment, and the claimant can show that following the protocols would not have improved the situation. The protocols allow a claimant to access up to 21 therapy treatments over 90 days, and the cost of the therapy will be paid by the claimant’s own auto insurer without the requirement for pre-approval of the cost.

The second way that an injury may be classified as minor is through an individual medical assessment made in accordance with the above noted protocols. In other words, either party (i.e., the claimant or the insurance company) can decide that the claimant should attend an assessment with a medical professional for the purposes of a medical opinion on the question of whether the injury is minor.

Finally, if the parties disagree with a finding that the injuries are minor, then the claimant can go to court for a final determination.

What Injuries Are Not Capped?

Other Injures:

The minor injury cap does not apply to injuries other than strains, sprains, whiplash associated disorder (with no neurological signs), certain TMJ disorders, and related physical and psychological symptoms. Such other injuries may include: concussions and brain damage; neurological injuries; fractures; internal bleeding; vestibular injuries, among others.

If a claimant has injuries other than those classified as minor, it is essential that these be conveyed to the health care provider so that there is proof of the non-capped injury.

Serious Impairment:

Again, the minor injury cap will not apply to any injury that results in serious impairment such as long-term problems with work, leisure or other regular activities. The courts have held that a serious impairment may be found in cases where pain continues to impact a claimant’s life for six months beyond an accident. So regardless of the type of injury that you have, it will not be capped if it continues to impact your life on a long-term basis.

Again, it is essential that a claimant advise their doctor of the impact an injury has on their day-to-day life so there is proof of the serious impairment.

Concussions:

Concussions (also known as mild traumatic brain injury or mTBI) are increasingly common, but victims of this injury are often unaware that their symptoms are caused by a concussion. Sometimes a concussion may go unnoticed or undocumented by medical practitioners. This is detrimental not only to an injury claim, but to the potential recovery from the injuries as well. Therefore, it is important that a claimant be aware of the prevailing medical consensus that requires the presence of one of three factors before a concussion can be definitively diagnosed:

1. any period of loss of consciousness after the accident;
2. any loss of memory for events immediately before or after the accident for as much as 24 hours; or
3. any alternation of mental state immediately after the accident (ie. feeling dazed, disoriented or confused).

Other common symptoms of concussion may include some or all of the following: problems in arousal, attention, concentration and judgement; spatial disorientation (problems with perception, direction, etc.); slowness of thought processes; slowness and/or difficulty with speech; fatigability; maintaining attention and activity produces fatigue; visual impairment; hearing impairment; hemiparesis (weakness on one side of the body); anxiety and depression; inappropriate behaviours (impulsivity, disinhibition, lack of social judgment, and appreciation of subtleties); agitation/outbursts; sexual dysfunction; loss of social network/isolation; dizziness; sensitivity to light or sound; fogginess; poor memory; blurred speech.

Again, it is essential to report any of the above noted symptoms to the doctor immediately after the accident so that a possible concussion can be properly assessed and diagnosed.

Psychological Injuries:

Psychological injuries such as low mood, depression and anxiety may be capped if they are caused by and resolve with a physical injury that is capped. However, psychological injuries will not be capped if they are caused by injuries that are not classified as “minor” by the law, such as a concussion, a fracture, etc. Further, even if a psychological injury is caused by a physical injury that is capped, the compensation for the psychological injury will not be capped if it does not resolve with the physical injury. In other words, if a minor physical injury gives rise to psychological symptoms, and the physical injury resolves but the psychological injury does not, then the compensation for the psychological injury should not be capped.

Neurological Signs:

The minor injury cap includes whiplash associated disorders, but not if the injury has “neurological signs”.

These signs may include loss of range of motion, abnormal reflexes, muscle weakness, and or numbness or tingling in the extremities (hands, arms, legs and feet). Such symptoms are often associated with a spinal cord disc protrusion.

Certain Dental and Jaw TMJ Injuries:

Although soft tissue injuries to the jaw are subject to the cap, there are exceptions. Injuries to the teeth and jaw bone, and injuries that cause a clicking of the jaw, are generally exempt from the minor injury cap.

Non-Motor Vehicle Claims:

The minor injury cap does not apply to non-motor vehicle accident types of claims. For instance, the cap will not apply to injuries sustained as a result of slip and falls. Further, the cap may not apply to motor vehicle accidents that occur off the roadway. It also may not apply to accidents that occur in different jurisdictions, where entirely different systems may apply.

Other Categories of Compensation:

Remember, the minor injury cap only applies to compensation for pain and suffering. It does not apply to limit the compensation available for past or future income loss, household assistance, out of pocket expenses, accelerated depreciation of damaged vehicles, future care costs, among others.

Written by Mark Hamilton of Mussio Goodman Hamilton